Category Archives: First Amendment

From todays 8th Circuit decision in Gerlich v. Leath:

Iowa State University (ISU) grants student organizations permission to use its trademarks if certain conditions are met. The ISU student chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU) had several of its trademark licensing requests denied because its designs included a cannabis leaf.

ISU [has] approximately 800 officially recognized student organizations. Student groups often create merchandise that contains the groups name and ISU insignia to generate awareness about the groups cause or attract members. Student groups may use ISUs trademarks on merchandise if ISUs Trademark Licensing Office (Trademark Office) determines that the use complies with ISUs Guidelines for University Trademark Use by Student and Campus Organizations (Trademark Guidelines). ISUs trademarks include word marks like ISU and Iowa State, as well as logos, such as the schools mascot (Cy the Cardinal).

NORML ISU at first got permission from the Trademark Office to use a T-shirt that had NORML ISU on the front with the O represented by Cy the Cardinal, with Freedom is NORML at ISU and a cannabis leaf depicted on the back. But after a Des Moines Register article mentioned the T-shirt, a state legislator and someone at the Governors Office of Drug Control Policy heard about this and objected, and the University barred NORML ISU from printing further T-shirts with the design. After that, the Universitys Trademark Guidelines were changed to ban designs that suggest promotion of the below listed items dangerous, illegal or unhealthy products, actions or behaviors; [or] drugs and drug paraphernalia that are illegal or unhealthful.

The 8th Circuit held that the universitys rejection of NORML ISUs designs was unconstitutional:

If a state university creates a limited public forum for speech, it may not discriminate against speech on the basis of its viewpoint. [Rosenberger v. Rector (1995).] A university establish[es] limited public forums by opening property limited to use by certain groups or dedicated solely to the discussion of certain subjects. A universitys student activity fund is an example of a limited public forum. ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions.

The defendants rejection of NORML ISUs designs discriminated against that group on the basis of the groups viewpoint. The state engages in viewpoint discrimination when the rationale for its regulation of speech is the specific motivating ideology or the opinion or perspective of the speaker. The defendants discriminatory motive is evidenced by the unique scrutiny defendants imposed on NORML ISU after the [controversy arose].

Defendants argue that the political pushback that they received regarding T- Shirt Design #1 did not play a role in their decision making. This argument ignores significant evidence to the contrary. For example, [ISU President Steven] Leath testified that anytime someone from the governors staff calls complaining, yeah, Im going to pay attention, absolutely. Leath also testified that the reason the Trademark Policy was on the presidents cabinet meeting agenda which took place five days after the Des Moines Register article was published was because we were getting pushback. Leath went on to testify that [i]f nobodyd ever said anything, we didnt know about it, it didnt appear in The Register, wed probably never raised the issue.

The record is also replete with statements from defendants regarding their political motives. Leath explained at his deposition that because T-Shirt Design #1 had some political public relations implications, someone should have run it up the chain because there are some issues that are clearly going to cause controversy and its better to manage them on the front end. He also testified that in a state as conservative as Iowa on many issues, it was going to be a problem. [Senior VP for Student Affairs Thomas] Hill stated in an interview with the Ames Tribune that the reason student groups associated with political parties could use ISUs logos, but groups like NORML ISU may not, is because [w]e encourage students to be involved in their duties as a citizen. Such a statement implies that Hill believed that the members of NORML ISU were not undertaking their duties as citizens by advocating for a change in the law.

[ISU Trademark Office Director Leesha] Zimmerman stated in an email to NORML ISUs faculty advisor in May 2013 that the groups design that included the statement Legalize Marijuana was rejected because Legalize Marijuana is a call to action but it does not suggest any specific way your organization is making that happen. Zimmerman went on to say that the groups design applications appear to have a certain shock or attention grabbing sensationalism. Zimmerman further stated that her interpretation is that these do not further your cause as an advocate for change in the laws or trying to change the publics perception of marijuana. There is no evidence in the record of Zimmerman offering advocacy advice to any other student group.

The university also argued that, even if it did engage in viewpoint discrimination, this was permissible because the administration of the trademark licensing regime should be considered government speech. But the court disagreed:

When the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. Walker v. Tex. Div., Sons of Confederate Veterans, Inc. (2015).

The government speech doctrine does not apply if a government entity has created a limited public forum for speech. As noted above, ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions. The administration of its trademark licensing regime therefore did not constitute government speech.

Even if the trademark licensing regime here did not amount to a limited public forum, however, the government speech doctrine still does not apply on this record. The Walker decision considered three factors when determining whether certain speech is government speech. First, it determined whether the government has long used the particular medium at issue to speak. Second, it analyzed whether the medium is often closely identified in the public mind with the state. Third, it determined whether the state maintains direct control over the messages conveyed through the medium.

The first two factors do not apply to the speech at issue in this case. ISU allows approximately 800 student organizations to use its trademarks. Defendants repeatedly stated in their testimony and other record evidence that the university did not intend to communicate any message to the public by licensing ISU trademarks to student groups. Indeed, the university licenses its trademarks to groups that have opposite viewpoints from one another like the Iowa State Democrats and the ISU College Republicans. Even if ISUs trademark licensing regime were to satisfy the final factor, the factors taken together would not support the conclusion that the speech at issue in this case is government speech because ISU does not use its trademark licensing regime to speak to the public.

My students Ian Daily, Eric Sefton and Sydney Sherman and I filed an amicus brief on behalf of the Student Press Law Center arguing in favor of this result.

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Iowa State violated First Amendment by barring pro-marijuana student group from printing T-shirts with ISU logo ... - Washington Post

Education Week (subscription) (blog)

More High School Students Support First Amendment Freedoms ... Education Week (subscription) (blog) The John S. and James L. Knight Foundation's sixth annual study on the topic finds a growing share of students support First Amendment rights. and more »

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More High School Students Support First Amendment Freedoms ... - Education Week (subscription) (blog)

On Feb. 3, a conservative speaker was slated to speak at the University of California at Berkeley. That's when "Black Bloc" intervened.

According to CNN (cnn.com/2017/02/01/us/milo-yiannopoulos-berkeley/), "150 masked agitators caused more than $100,000 worth of damage at UC Berkeley ... when demonstrators gathered to protest Milo Yiannopoulos, who was scheduled to give a speech at the school.

"Black-clad protesters, wearing masks, threw commercial-grade fireworks and rocks at police. Some even hurled Molotov cocktails that ignited fires. They also smashed windows of the student union center on the Berkeley campus.

"At least six people were injured. Some were attacked by the agitators -- who are a part of an anarchist group known as the "Black Bloc" that has been causing problems in Oakland for years ..."

If you haven't hear of Black Bloc, watch the video at usatoday.com/story/news/nation-now/2017/02/02/what-black-bloc/97393870/.

We are told by some that Black Bloc is not an organization; rather, it is a "spontaneous coming together of individuals" to act as a "protective shield" for "progressive protesters" against "police brutality." If you buy that, I've got a nice bridge to sell you!

As I watch the USA Today video, I can only come to one opinion: Black Bloc is a criminal conspiracy which engages in overt acts of violence intended to deprive other Americans -- with whom they disagree -- of their Constitutional rights of free speech, peaceable assembly and private property.

So what justifies rioting, the fires, the destruction of property? The left-wing anarchists disagreed with the political opinions of a man scheduled to give a speech.

So how long will the new administration put up with left-wing anarchists clad in black hoods and black masks? Are criminal thugs who run around and do violence in black hoods and black masks any better than the Klu Klux Klan? Are stormtroopers in black masks and robes any more noble than Klansmen in white robes and masks?

In 1870, The Congress, at the behest of President Grant, passed "An Act to enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other Purposes."

The act was a response to terror, force and brutality used by the Klan (KKK) to prevent newly freed blacks from voting and exercising their newly granted Constitutional Rights. Section 6 criminalized "conspiring" or "going in disguise" to "intimidate" or to "hinder the free exercise" of any right granted by the Constitution. Conviction carried up to 10 years imprisonment.

Criminals, anarchists and rioters in hoods and masks -- whether those hoods and masks be white or black -- who riot in the streets to prevent anyone from exercising his First Amendment right to speak freely or assemble peacefully, or the right of any other citizen to own private property, are therefore playing a dangerous game.

The U.S. government virtually wiped out the first wave of the KKK using the Enforcement Acts. If the government decides enough is enough, 150 guys in black hoods and masks, as well as their financiers, may find themselves spending the next 10 years in federal prison.

Any thinking American should be revolted by Black Bloc's wanton destruction of property and attacks on police and bystanders. This rioting is exactly what the Nazi Brown Shirts, aka Stormtroopers, did in Germany in the 1930s.

The riots in Berkeley have the stench of Kristallnacht about them. Kristallnacht occurred Nov. 9-10, 1938. It was the night when Nazi Stormtroopers, wearing civilian clothes, to create the illusion of a "spontaneous demonstration," destroyed 267 synagogues and innumerable Jewish businesses throughout Hitler's Reich. Mobs of SA men roamed the streets, attacking Jews in their houses and forcing Jews they encountered to perform acts of public humiliation.

Our Constitution guarantees free speech. But free speech does not include incitement to riot, or the act of rioting. Attacking police and burning down buildings has never been constitutionally protected.

John Donald O'Shea, of Moline, is a retired circuit court judge.

Read more:
Rioting not protected by First Amendment - Quad-Cities Online

Mauro Grigollo Westend61/Newscom"Today is Jim Stewart's birthday. Reply to post a wish on his Timeline or reply with 1 to post 'Happy Birthday!'" That's the text, from Facebook to Colin Brickman, that launched a legal battle between Brickman and the social-media giant.

You see, Brickman had opted out of receiving texts from Facebook via the platform's notification settings. In response to the unwanted birthday reminder, Brickman filed a class-action lawsuit against Facebook, representing "all individuals who received one or more Birthday Announcement Texts from [Facebook] to a cell phone through the use of an automated telephone dialing system at any time without their consent."

The suit, filed in the U.S. District Court for the Northern District of California, argues that Facebook's sending unauthorized text messages is a violation of the federal Telephone Communications Privacy Act (TCPA). "A valid TCPA claim requires plaintiff to allege (1) a defendant called a cellular telephone number; (2) using an automated telephone dialing system ('ATDS'); and (3) without the recipient's prior express consent," explains lawyer Jack Greiner in the Cincinnati Enquirer. "A text message is a 'call' within the meaning of the TCPA."

In its defense, Facebook alleged that the TCPA in unconstitutional. Citing the U.S. Supreme Court's 2015 decision in Reed v. Town of Gilbert, Facebook attorneys argued that the TCPA's allowed exceptionsfor emergency communications and debt collectorsrender it an umpermissable, content-based restriction on speech. But the judge, while agreeing that the TCPA's restrictions are content-based (and thus subject to strict scrutiny, legally speaking), found that the law passed constitutional muster nonetheless.

The case will go forward with Facebook defending its text messages on technical grounds; it argues that the texts were not automated because Brickman and others who received them had supplied Facebook with their phone numbers. But, for now, Facebook's argument that it has a First Amendment right to send people text messages against their will has been rejected.

The 9th U.S. Circuit Court of Appeals has twice found the TCPA to be constitutional in previous casesMoser v. Federal Communications Commission (1995) and Campbell-Ewald v. Gomez (2016)the Department of Justice pointed out in a memorandum in support of TCPA's constitutionality. In the latter case, the 9th Circuit rejected the idea that the government's interest with the law "only extends to the protection of residential privacy, and that therefore the statute is not narrowly tailored to the extent that it applies to cellular text messages."

"There is no evidence that the government's interest in privacy ends at home," ruled the 9th circuit in Campbell-Ewald. Furthermore, "to whatever extent the government's significant interest lies exclusively in residential privacy, the nature of cell phones renders the restriction of unsolicited text messaging all the more necessary to ensure that privacy."

Read more:
Facebook Has No First Amendment Right to Send Unauthorized Texts, Says Court - Reason (blog)

News Release Norwich University Feb. 10, 2017

Contact: Daphne Larkin 802-485-2886 dlarkin@norwich.edu Follow us on Twitter @NorwichNews

NORTHFIELD, Vt. Norwich Universitys Sullivan Museum and History Center will host a lunch and learn program on the First Amendment in conjunction with a national, pop-up exhibit commemorating the 225th anniversary of the Bill of Rights.

On Wednesday, Feb. 22, at noon, The Sullivan Museum and History Center presents, A Living Document: The First Amendment, Past, Present and Future, a talk by Austin Gray, attorney and longtime professor of civil liberties and Constitutional law. The event includes a light lunch and is free and open to the public.

Gray, of law firm Gray Law PLLC in Barre, Vt., has been teaching at the university level for 20 years and is one of the founding faculty of the Master of Law program at Champlain College. He also teaches Civil Liberties and Constitutional Law at Norwich University. A graduate of Temple University School of Law, Gray is a member of the Vermont, Pennsylvania and New Jersey Bar Associations.

This presentation is held in conjunction with a new pop-up exhibition from the National Archives, The Bill of Rights and You, commemorating the 225th anniversary of the ratification of this landmark document. This exhibit spotlights one of the most remarkable periods in American history, explores the origins of the first 10 amendments to the U.S. Constitution (collectively known as the Bill of Rights), illustrates how each amendment protects U.S. citizens, and looks at how Americans exercise the rights outlined in the amendments. The Bill of Rights and You invites visitors to connect directly with the people, places, and events that mark this historic documents evolution. The exhibit will be on display in the Museums Rotunda through March 15, 2017.

The Bill of Rights and You co-curator Jennifer Johnson states: The Bill of Rights represents the Founders vision that it would be the people, through votes, that could change the Constitution with enough consensus. And when the people desired a Bill of Rights, our first 10 amendments were added to our governing charter.

Visitors are also encouraged to engage in a dialogue by answering the question: What Does Freedom Mean to You? A message board in the Museum Rotunda is available to post your own personal answer.

The Bill of Rights and You is organized by the National Archives and Records Administration, and traveled by the National Archives Traveling Exhibits Service (NATES). This exhibition was developed in collaboration with the National Archives National Outreach Initiative to commemorate the 225th Anniversary of the Bill of Rights. The exhibition is presented in part by AT&T, Seedlings Foundation, and the National Archives Foundation.

This exhibit is brought to you in collaboration with the Vermont Humanities Council and the Federation of State Humanities Councils. A statewide nonprofit organization founded in 1974, the Vermont Humanities Council strives to make Vermont a state in which every individual reads, participates in public affairs, and continues to learn throughout life.

Norwich Universitys Sullivan Museum and History Center is the only museum in Vermont to be named a Smithsonian Affiliate. Currently, there are two exhibitions focusing on the year leading up the 100th Anniversary of World War One and the 75th Anniversary of World War Two. These exhibits are on display through May 2017 and include various items from the university collection as well as borrowed materials. Some of the artifacts on exhibit include: trench art, World War One and Two posters, patriotic jewelry, artwork, uniforms, medals, objects from the field, weapons and other items from our collection.

The museum is open to the public from 8 until 4 Monday through Friday, but is closed on holidays. Admission is free. For more information about the programs or exhibit, please call 802-485-2183 or visit http://academics.norwich.edu/museum.

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Norwich University Hosts Program on First Amendment, National ... - vtdigger.org

(Image: Lauren Walker / Truthout; Adapted: Locololastock)

Media advocates everywhere were alarmed, if not surprised, when Donald Trump recently appointed former Verizon lawyer Ajit Pai to be the next chairman of the Federal Communications Commission (FCC). Central questions include what Pai's appointment will mean for freedom of the press and the future of the internet. Sources who have met Pai, who is active on social media, describe him as smart and affable, but with a militant, ideological opposition to regulating Big Media and Telecom. An FCC controlled by Trump and Pai, the latter of whom has "been on the wrong side of just about every major issue that has come before the FCC," according to the media reform group Free Press, poses a serious threat to democracy.

Pai, an FCC commissioner since 2012, has constantly sided with the powerful media and telecom lobbies. He pledged to take a "weed whacker" to net neutrality, opposed lowering the cost of phone calls for families of people in prison, and enabled devastating media concentration with his opposition to ownership restrictions. His promotion to chairman was met with glee from free-market ideologues and executives at big media and telecom companies, such as AT&T, who promised to help Pai "support the president's agenda."

Trump has already shown an extreme level of hostility toward the press. Now, he will have the Pai-led FCC to function as his own personal toolbox to undermine the free press. As Americans unite in resistance to Trump, it is vital that they take notice of what is going on at the FCC.

"The FCC is designed to protect the media in the interest of the public. But as a commissioner for all these years, I have seen it become a willing accomplice in diminishing our media," said former FCC chairman Michael Copps, in an interview with Truthout. "We have a sad state of affairs in the media ... Pai opposes any kind of government oversight. So I am deeply worried."

The Fragility of the First Amendment

The FCC was created in 1934 to make media and communications "available so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex." At the time, it mostly applied to radio, but it has expanded to include virtually all our methods of mass communication: telephone, television and the internet. When functioning as it should, said Free Press strategic director Tim Karr in an interview with Truthout, its "existence is vital in protecting basic freedoms of speech that are important to Americans."

Indeed, the public has long revered the First Amendment, by far the most well-known and appreciated amendment in the Constitution. But polls also show a great deal of confusion over what the amendment does. This combination of reverence and ignorance has led to what Karr calls a "nave perception that the First Amendment will always be there to protect us."

But the reality is that only with militant advocacy have these protections been preserved. The fragility of the amendment has been evident since before the Constitution was ratified. It was opposed by most of the framers -- federalists who allowed for the inclusion of the Bill of Rights only as a concession to placate the anti-federalists who were skeptical of the 55 wealthy elites who produced the Constitution in secret and believed "the evils we experience flow from the excess of democracy."

Since then, the values in the First Amendment have been undermined many times. Examples abound: John Adams jailed dissenters and journalists with the Alien and Sedition Acts. Eugene Debs was jailed for years by the (still existent) Espionage Act of 1917 for giving an anti-war speech. More recently, the Obama administration waged a war against whistleblowers and spied on the Associated Press.

Our First Amendment rights are in even greater peril given Trump's open hostility toward the media. Six reporters were charged with felonies for committing the apparently criminal act of journalism at Trump's inauguration (see Truthout's statement of solidarity). And the anti-Semitic, Islamophobic white nationalist Steve Bannon called the media an "opposition party" that should "keep their mouths shut."

If most Americans previously held the belief that the First Amendment will always protect their rights to free speech and a free media, the actions of Donald Trump -- just weeks into his reign -- should awaken them from the slumber. Media activism, and specifically the function of the FCC, has arguably never been more important.

"We need to fight for a free press and free speech, and it has to be the grassroots," said Copps, who serves as an advisor at Common Cause, a national organization that fights for democratic reforms. "People have to fight for it.... The media won't cover [these issues]."

A New Era of Media Consolidation

It is indeed rare for the media to cover how the industry's increasing concentration hurts democracy. Such journalism would put the profits of Big Media in jeopardy. The dearth of coverage has limited study on the issue, but the available literature on the subject is unambiguous. A study published by the Journal of Politics on media coverage of concentration resulting from the Telecommunications Act of 1996 -- the most damning loosening of ownership restrictions in the FCC's history -- found "substantial differences in how newspapers reported on these proposed regulatory changes depending on the financial interests of their corporate owners."

But despite the media's tendency to ignore or dismiss such concerns, the issue of ownership is vital in any discussion of a free press. "Critics of concentration rightly view the media as a huge, non-democratically organized force that has major power politics, public discourse and culture," observed media scholar C. Edwin Baker, in his book, Media Concentration and Democracy: Why Ownership Matters. Baker lamented an FCC whose actions too often "lie in the power and economic self-interest of major media companies."

Pai, however, doesn't see media concentration as a threat to the First Amendment. In fact, he has oddly argued that the threat to the First Amendment lies in limits on such concentration. Bloomberg reports that Pai believes that existing rules are "obsolete," and the industry is already anticipating that he will relax current ownership restrictions.

Of immediate concern to reformers and the industry is the proposed $85 billion merger of Time Warner and AT&T, which Free Press argues "would create a television and Internet colossus like no other." The danger of this merger managed to unite Senators Mike Lee (R-Utah) and Amy Klobuchar (D-Minnesota), who issued a joint statement arguing the transaction would "raise significant antitrust issues." The deal is seen as part of a new era of consolidation involving megamergers between media companies and satellite and cable providers. Comcast's acquisition of NBC Universal, denounced by media reform activists, is an early example of this.

Trump has publicly vowedto stop the merger, but organizers are not buying it. "Trump hates CNN. I think Trump was trying to fire a shot at Time Warner [which owns CNN], but the reality is that his FCC transition team was always pro-merger, and the same is true of Pai," Karr said.

This new kind of consolidation is not likely to end with Time Warner/AT&T. On January 27, the Wall Street Journal reported that Verizon is "exploring a merger" with the cable/telecom giant Charter Communications, a prospect which tech reporter Chris Mills said "is terrifying for anyone with an internet connection."

With Pai in charge, the prospects for the approval of mergers are significantly improved. His appointment has some tech companies "salivating," according to the financial news service, The Street. "Althoughmany of President Donald Trump's cabinet nominations and government appointees have been mired in controversy, one of the more influential for a large swath of the U.S. economy and markets is barely registering with the media," the report said.

Media Lobby: Full Speed Ahead

While some of this merger talk is speculative, one thing is certain. "With such high stakes, the media and telecom lobbies are powerful and working full bore in Washington," Copps said.

In the House of Representatives, media issues are handled by the Committee on Energy and Commerce, and more specifically, the Subcommittee on Communications in Technology (whose members have been named for both parties).The chair of the subcommittee is Rep. Marsha Blackburn (R-Tennessee) who, as Karr notes, is "awash in money" from the major lobbies.

But Blackburn is hardly alone. Cross-referencing members of the committee with donations from these industries is a dizzying exercise. According to the most recent data from the Center for Responsive Politics, Time Warner has donated more money to the Commerce Committee than any other committee, more than double that of the next largest recipient, the Judiciary Committee. The same is true of AT&T, the other half of the pending merger that will more likely face hearings, and the National Association of Broadcasters(NAB) and Comcast donate money along similar lines.

Among the top industries donating to Blackburn in the recent cycle were telecom services, TV utilities and telephone utilities. The companies to donate the most to Blackburn were Verizon, Comcast, AT&T, Charter Communications and the National Cable and Telecommunications Association (NCTA). Vice Chairman Leonard Lance's top industries include telecom services and telecom utilities, with specific donors including AT&T and NCTA.

Telecom services is also the fourth-largest industry to donate to Michael Doyle, the ranking Democrat on the committee. His largest donors include Comcast and the Communications Workers of America, one of the rare unions to oppose net neutrality protections. The National Association of Broadcasters has donated to 21 members of the subcommittee, 15 of them Republicans.

The End of Net Neutrality?

There can be no doubt about the power and aggressiveness of these industries. The Center for Responsive Politics' records show 560 clients for the telecom industry who spent $87 million in 2016. The spending is reflective of how high the stakes are for media policy debates in the coming years. Decisions by Pai and Trump could lead to the end of net neutrality, which protects consumers from corporations that seek to commodify the internet and dictate which sites are most accessible. The majority of people, including conservatives, are supportive of net neutrality in polls.

Pai and other conservatives will occasionally claim to support the principles of net neutrality. Organizers, however, warn that these are misleading claims. Despite offering lip service about an open internet, Pai opposes any regulation with teeth to enforce these protections. Tom Wheeler, Obama's final FCC chairman passed significant reforms on this issue. But Pai opposed them, arguing in his dissent that he was "sad to witness" this "unlawful power grab." This is why militant conservatives like Laura Ingraham and Michelle Malkin cannot resist making giddy tweets in praise of Pai and his metaphorical gardening equipment:

Malkin's vigorous support of America's Japanese internment camps bears unsettling similarities to Trump's authoritarian agenda. It appears she also shares his administration's contempt for the FCC as a regulatory agency. She has described the FCC as "internet traffic cops," in a blog post titled "Internet access is not a civil right."

Copps, on the other hand, sees the issue of net neutrality as a defining one for advocates of media reform. "People see climate denialists at the EPA and are rightly concerned," Copps said. "Well, Trump just appointed a net-neutrality denialist at the head of the agency. This is how people should look at this issue."

Opposing Prison Phone Justice

Another troubling part of Pai's past is his opposition to prison phone justice. For years, prison phone services have been privatized, and companies have charged exorbitant amounts of money for prisoners to make calls -- a burden placed upon their families, who are overwhelmingly low-income. In 2015, as a Truthout op-ed documented, this $1.2 billion industry, rife with corruption and bribery scandals, was finally required by Wheeler's FCC to lower these costs.

Pai voted against the modest, humane reforms.

"The Commission's decision today is well-intentioned, and I commend the efforts of those working to reduce the rates for inmate calling services," Pai wrote in his dissent. "Unfortunately, I cannot support these particular regulations because I believe that they are unlawful."

In November 2016 a federal appeals court blocked the FCC's efforts to reform the process. The Wheeler-led FCC was still fighting the issue in the courts, but the new Republican majority wasted little time in dropping the defense of rate caps altogether -- a distressing sign of things to come with Pai in charge.

To this day, prisoners and their families are suffering from this injustice. "It costs $3.15 for a 15-minute phone call inside here," says John Broman, a federal prisoner who writes about his life in prison, in an interview with Truthout. "For the people that rely on a $5.25 paycheck once a month, it comes down to soap or a call to their family, which really isn't right."

Media Activism and Resistance to Trump

Media activists emphasize that all of the Trump administration's brutal policies will be exacerbated by its egregious media policy agenda.

"Whatever you think is the most important issue," Copps said, "media policy should be next on your list. There will be no change on the issue you care about the most without a strong media."

For instance, an FCC that is hostile to a free press doesn't cause climate change, but if private capital controls virtually all media, there will be no serious national discussion on the subject. Media touches everything. "In any large society, mass media is probably the most crucial instructional structure in the public sphere," Baker writes.

The good news is that millions have protested Trump's agenda. But efforts to fight for justice will be limited if Trump can trample the press and the open internet. Advocates are hopeful that the widespread resistance to Trump will include the struggle for a free press.

"Millions of Americans from across the political spectrum have looked to the FCC to protect their rights to connect and communicate," said Free Press CEO Craig Aaron on the day Pai was appointed. "Those millions will rise up again to oppose his reactionary agenda."

See more here:
The First Amendment May Not Protect Us: Trump's FCC Intensifies Attack on Press - Truth-Out

One of several service providers to sue the government over its gag orders, Microsoft received some good news from a federal judge in its lawsuit against the DOJ. Microsoft is challenging gag orders attached to demands for data and communications, which the DOJ orders is statutorily-supported by the Electronic Communications Privacy Act (ECPA) and, if not, by supposed national security concerns.

As Microsoft pointed out in its lawsuit, the government rarely justifies its secrecy demands and frequently issues gag orders with no endpoint. Microsoft received nearly 2,800 of these gag-ordered requests over an 18-month period, with over two-thirds of them demanding silence indefinitely.

The good news is a federal judge has (partially) waved away the DOJ's motion to dismiss and will allow Microsoft to proceed with its lawsuit, as Politico's Josh Gerstein reports.

U.S, District Court Judge James Robart issued a 47-page opinion [PDF] Thursday allowing Microsoft to proceed with a lawsuit claiming a First Amendment violation when the government restricts internet providers from notifying subscribers about requests for their data.

"The orders at issue here are more analogous to permanent injunctions preventing speech from taking place before it occurs," Robart wrote. "The court concludes that Microsoft has alleged sufficient facts that when taken as true state a claim that certain provisions of Section 2705(b) fail strict scrutiny review and violate the First Amendment."

Section 2705(b) refers to the Stored Communications Act, which allows the government demand notice be withheld under certain circumstances, unless otherwise forbidden to by another section of the same law (Section 2703). Microsoft is looking to have both sections declared unconstitutional, especially given the severe upheaval the communications landscape has undergone in the thirty years since the law was passed.

Microsoft contends that Section 2705(b) is unconstitutional facially and as applied because it violates the First Amendment right of a business to talk to [the businesss] customers and to discuss how the government conducts its investigations. Specifically, Microsoft contends that Section 2705(b) is overbroad, imposes impermissible prior restraints on speech, imposes impermissible content-based restrictions on speech, and improperly inhibits the publics right to access search warrants. Microsoft also alleges that Sections 2705(b) and 2703 are unconstitutional facially and as applied because they violate the Fourth Amendment right of people and businesses . . . to know if the government searches or seizes their property.

Microsoft contends that the statutes are facially invalid because they allow the government to (1) forgo notifying individuals of searches and seizures, and (2) obtain secrecy orders that prohibit providers from telling customers when the government has accessed their private information without constitutionally sufficient proof and without sufficient tailoring.

The DOJ argued Microsoft didn't have standing to bring this complaint, as its Fourth Amendment rights aren't implicated. Only its customers' are. But the court points out that, if nothing else, the company does have standing to pursue its claims of First Amendment violations.

The court finds that Microsoft has sufficiently alleged an injury-in-fact and a likelihood of future injury. Microsoft alleges an invasion of its legally protected interest in speaking about government investigations due to indefinite nondisclosure orders issued pursuant to Section 2705(b)... The court concludes that Section 2705(b) orders that indefinitely prevent Microsoft from speaking about government investigations implicate Microsofts First Amendment rights.

The court goes on to point out that frequent use of indefinite gag orders certainly appears to be unconstitutional, given that they act as a "forever" application of prior restraint.

The court also concludes that Microsoft's assertions of further civil injuries aren't speculative, as the DOJ claimed. Judge Robart points to the government's own actions as evidence of continued harm to Microsoft's civil liberties.

Microsoft bolsters its prediction by alleging that over a 20-month period preceding this lawsuit, the Government sought and obtained 3,250 ordersat least 4504 of which accompanied search warrantsthat contained indefinite nondisclosure provisions. In addition, Microsoft alleges that in this District alone, it has received at least 63 such orders since September 2014. Because these orders have been frequent and issued recently, the Government will likely continue to seek and obtain them. Accordingly, Microsofts fears of similar injuries in the future are not merely speculative.

Unfortunately, the court won't grant Microsoft the standing to represent its users for Fourth Amendment purposes. Judge Robart points to a whole bunch of precedential decisions declaring otherwise, but at least takes a bit of time to discuss how denying Microsoft this opportunity likely means denying several of its users any sort of redress.

The court acknowledges the difficult situation this doctrine creates for customers subject to government searches and seizures under Sections 2703 and 2705(b). As Microsoft alleges, the indefinite nondisclosure orders allowed under Section 2705(b) mean that some customers may never know that the government has obtained information in which those customers have a reasonable expectation of privacy... For this reason, some of Microsofts customers will be practically unable to vindicate their own Fourth Amendment rights.

Expect the government to make heavy use of its "national security" mantra as it defends itself in this case. Those magic words have allowed all sorts of civil liberties violations in the past and still tend to move courts to the government's side when deployed in DOJ motions. If the court does side with Microsoft when this is all said and done, it's likely the remedy won't be a restriction on gag orders, but more likely something analogous to the rules that now govern National Security Letters -- periodic review of gag orders by the government and better avenues for raising challenges for companies affected. Then again, the court could simply punt it back to legislators and push them to fix the 30-year-old law whose dubious constitutionality is the source of numerous lawsuits against the federal government.

See the rest here:
Court Says Microsoft Can Sue Government Over First Amendment-Violating Gag Orders - Techdirt

Siding with Google, a federal judge has dismissed a lawsuit brought by search engine optimization company e-ventures Worldwide, which claimed its sites were wrongly removed from search results.

U.S. District Court Judge Paul Magnuson in the Middle District of Florida said in a ruling issued this week that Google has a free speech right to decide which search results to display.

"Googles actions in formulating rankings for its search engine and in determining whether certain websites are contrary to Googles guidelines and thereby subject to removal are the same as decisions by a newspaper editor regarding which content to publish, which article belongs on the front page, and which article is unworthy of publication," U.S. District Court Judge Paul Magnuson in the Middle District of Florida said in a ruling issued this week. "The First Amendment protects these decisions, whether they are fair or unfair, or motivated by profit or altruism."

The decision grew out of a lawsuit filed by e-ventures in late 2014. The company alleged in its original complaint that Google removed 231 sites associated with e-ventures' Webmaster tools. Google allegedly notified e-ventures that the sites would be de-listed because they were "pure spam."

"Identifying what Google believes is 'pure spam," and remedying the problem to remove the "pure spam" designation, without any specificity from Google, is a potentially insurmountable task," e-ventures wrote in the complaint, which accused Google of engaging in unfair and deceptive practices and interfering with business relations and defamation. e-ventures later dropped the defamation claim and added an allegation that Google violated a law regarding unfair competition.

Magnuson noted in his ruling that e-ventures' consultant told the company its sites were spam.

"In its attempts to secure re-listing of its sites on Google, e-ventures admitted that its sites were littered with doorway domains and scraped content -- e-ventures told Google that its single topseos.com site contained 18,000 scraped articles, 46,000 scraped press releases, and more than 28,000 scraped job listings,"Magnuson added.

He said that Google restored 50 e-ventures sites in November 2014, and that e-Ventures "abandoned" 100 others by consolidating them into a single domain.

Magnuson's ruling comes nine months after he rejected Google's request to dismiss the case at a preliminary stage.

Santa Clara University law professor Eric Goldman, who called attention to Magnuson's decision, suggests e-ventures' lawsuit should have been thrown out earlier.

"Of course Google can de-index sites it thinks are spam," Goldman writes on his blog. "Its hard to believe were still litigating that issue in 2017."

He notes that Google prevailed in prior lawsuits accusing it of wrongly demoting companies in the search results. In 2003, a federal judge dismissed a lawsuit about that issue brought by SearchKing; in 2006, a different judge threw out a similar lawsuit by KinderStart.

See the article here:
Google Has First Amendment Right To Remove Sites From Search ... - MediaPost Communications

The Channels Opinion Pages | STAFF COLUMN

Madeline Nathaus, Channels Staff February 10, 2017 115 views Filed under Columns, National, Opinion, Politics, Protest

The First Amendment was included in the Constitution by the founding fathers to guarantee citizens of the United States freedom of the press, religion, assembly and petition. It is this amendment that separates America from more than 40 percent of the worlds population.

Along with this right to freedom of speech comes the right to peacefully protest, march, and to publicly state ones beliefs in hopes of bringing attention to an issue or cause.

Protests and marches have been a vital part of forming modern day America and upholding democracy. Without citizens rising up against the government African Americans would not have civil rights, women would not be able to vote, and gay couples would not be able to get married.

Though most protests and marches remain relatively peaceful, there are times when they take a violent turn and end up disproving the point they are trying to make. For example, in the days following Trumps election, protests broke out among major cities and college campuses across the country. Unfortunately, protests in Los Angeles, Denver and especially Portland became violent in some form.

It is because of the First Amendment and the rights it provides that the Ku Klux Klan can legally march through the streets spreading a message of hate towards non-white citizens. It is why the Westboro Baptist Church can stand on corners chanting God hates fags all in the name of freedom of speech.

However, contrary to these organizations messages of discrimination and unacceptance, the Black Lives Matter movement spreads a message of lawful fairness towards African Americans.

The Womens March, which took place a couple weeks ago, brought attention to the constant sexism that women still face in the 21st century.

There is a reason why Gandhi and Martin Luther King Jr. advocated for peaceful protests. Imagine a mother yelling at her daughter for neglecting to wash the dishes, the daughter is less inclined to listen to her mothers reasoning if she is being aggressive.

Violent protesters ruin the movement for peaceful and lawful protesters. Peaceful and disruptive protests are the most effective forms of defiance. Vandalism, destruction of property, physically attacking other civilians, setting fires and other violent acts are illegal and indecent.

As long as protesters dont break any laws, police officers are more than happy to defend the rights of citizens. They are not the bad guys. After all, it is their job to prevent unlawful activities.

I respect everyones constitutional rights, as long as [the protests] are peaceful. Thats all that we can ask for, said Paul Espinosa, an officer with the Los Angeles Police Department.

Love sends a stronger message than hate. People will be more open to listening to a message that contradicts their own ideology if their personal beliefs are tolerated and their rights and properties are respected.

Protests and marches are the most effective form of displaying civilians disagreement with certain government choices, but they must be used as a tool, not a weapon. Do not abuse your rights.

Read more here:
The Channels : Keep protests peaceful; don't weaponize First ... - The Channels

Wall Street Journal

Facts, Falsehoods and the First Amendment Wall Street Journal The First Amendment sky is not falling as a result of the recent decision of the District of Columbia Court of Appeals permitting climatologist Michael Mann's case to proceed against the National Review Online, despite the claims of NRO's attorneys ...

Link:
Facts, Falsehoods and the First Amendment - Wall Street Journal